Following up on Jack's post, I would emphasize again that despite its constant pleas that it cannot publicly discuss the legality of particular interrogation techniques -- an argument that ultimately depends on the notion that the rule of law is incompatible with fighting wars, because it is inapprorpiate to inform the enemy of what one's legal limits might be -- the Administration is more than happy to enumerate, in significant detail, which techniques are not legally available. As I wrote last month:

In his speech today, the President once again insisted that we "cannot describe the specific methods used -- I think you understand why -- if I did, it would help the terrorists learn how to resist questioning." In other words, if the detainees know what our legal limits are, they will know precisely which techniques they must resist in order to avoid revealing valuable information.

But this argument is no longer tenable (if it ever was), because we are now obviously very willing to disclose all sorts of limits beyond which we cannot go. The Administration's own bill today lists 27 specific forms of conduct that we ourselves will consider "war crimes" triable by military commission (pages 65-76). The Administration's draft amendment to the War Crimes Act (pages 79-84) contains nine categories of meticulously described conduct that could be punished as war crimes in the civilian criminal justice system. And, as noted above, the Army Field Manual released today goes into great and specific detail about what the military can, and cannot do, to its detainees. After all of these highly specific provisions are in the public record specifying what can and cannot be done within the law, it's no longer very persuasive to assert that the CIA's techniques cannot likewise be codified. It's no secret that the CIA has used waterboarding, hypothermia and threats to detainees' families. Knowing that such techniques are legal would not make it any easier for detainees to resist them.

In other words, if, in the Administration's view, waterboarding were clearly unlawful, it would say so publicly. The fact that it is unwilling to do so means that it is leaving open the possibility that the CIA may legally employ waterboarding.

How can that possibly be? I understand how the Vice President might think it is a "no brainer" that waterboarding can be used, because he and his staff do not think that the law binds the Executive branch at all. [It really says something about the state of our Nation, doesn't it, that the Administration's ludicrous defense of the Vice President's remarks is that he was referring not to waterboarding but instead to dunking detainees in water? As if that torture technique -- you know, the one used to test suspected witches -- is more acceptable conduct for the greatest democracy on Earth in the 21st Century? As I've said before, the term "shameless" doesn't even begin to describe . . . .]

But let's put aside the Vice President. How could the Office of Legal Counsel possibly conclude that waterboarding is legal? The short answer is that if OLC were performing its role properly -- i.e., assisting the President's faithful execution of the law -- it couldn't ever have signed off on such a technique. Even if waterboarding were not "torture," as defined in the law, it would still violate at least three other legal prohibitions, even when conducted by the CIA (which is subject to fewer laws than the military). For example, waterboarding violates:

(i) The federal assault statute, 18 U.S.C. 113, which provides that simple assaults, or assaults by striking or beating, are misdemeanors if they occur "within the special maritime and territorial jurisdiction of the United States" (which includes "the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership").

(ii) Common Article 3's prohibition on all "cruel treatment and torture."

and

(iii) The McCain Amendment's prohibition on cruel, inhuman and degrading treatment, which prohibits all conduct that would "shock the conscience" assuming the Due Process Clause applied. According to Justice Kennedy (almost certainly the dispositive vote as of now), this includes at the very least "torture or its close equivalents."

But one need not resort to these other legal constraints in this case, because waterboarding obviously is torture prohibited by the federal torture statute, 18 USC 2340-2340A. OLC apparently advised otherwise -- but how could that be? After all, waterboarding is perhaps the classic, paradigmatic technique of acknowledge torture regimes throughout history, from the Spanish Inquisition to the Khmer Rouge. And as Human Rights Watch explains, the U.S. itself "has long considered waterboarding to be torture and a war crime.":

As early as 1901, a U.S. court martial sentenced Major Edwin Glenn to 10 years of hard labor for subjecting a suspected insurgent in the Philippines to the 'water cure.' After World War II, U.S. military commissions successfully prosecuted as war criminals several Japanese soldiers who subjected American prisoners to waterboarding. A U.S. army officer was court-martialed in February 1968 for helping to waterboard a prisoner in Vietnam.

And plainly, if our enemies used these techniques on U.S. military personnel, no one would, in public debate, deny that such a technique is a form of torture. It is hard to imagine how OLC could possibly have concluded otherwise.

In one of my first posts here, I praised that 2004 memo, which is in numerous respects an enormous improvement over, and rebuke of, the horrifying memo that it superseded. But I continued to be bothered and befuddled by footnote 8 of the memo, which stated that notwithstanding the "various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." If, as reported, those OLC conclusions in 2002 included that waterboarding could be legal, how could the new memo's more reasonable legal analysis of the torture statute not affect what the CIA had been authorized to do?

Part of the answer is in the narrow way that Congress has defined torture. The Senate (at the urging of the first President Bush) insisted upon adopting extremely restrictive readings of certain key terms of the Convention Against Torture as a condition of its ratification of that treaty -- restrictive terms that Congress itself adopted in the torture statute. The criminal statute thus defines torture as an act "committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control"; and the statute in turn defines "severe mental pain or suffering" to require "prolonged mental harm."

Ans so, perhaps OLC concluded that when it comes to waterboarding, the mental pain and suffering is intermittent and short-lived, rather than "prolonged" -- say, if the water-boarding lasts only a couple of minutes or less, and is not intended to result in any lasting mental suffering. (Let's put to the side here the rather problematic point that severe long-term mental suffering is foreseeable in many cases.)

OK, but even if we assume that analysis is plausible (which is a stretch), and even assuming further that waterboarding does not result in physical pain, what about the prohibition on intended severe physical suffering? After all, the very purpose of waterboarding is to inflict a form of intense physical suffering that results in severe terror for one's life -- a terror that not even the most hardened criminals are said to be able to resist. According to one account reportedly promulgated by the CIA itself, "[u]navoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt."

The whole point of waterboarding is to induce severe physical suffering. Therefore it is torture, even under the limited definition in U.S. law.

It ought to be as simple as that, right? Indeed, the idea that Congress would not have considered the acute suffering caused by waterboarding to be "torture" (particularly in light of the historical consensus that it is a paradigm case of torture) is so utterly implausible that it is hard to imagine the Office of Legal Counsel even considering, let alone adopting, any interpretation of the statute that would exclude such a technique from its ambit. Under a reasonable mode of statutory construction, one could start with the understanding that waterboarding is torture, and work outward from that truism to see what it reveals about the meaning of the statute for other techniques.

Ah, but take a look at the runover paragraph at the top of page 12 of the 2004 OLC memo -- a passage that I unfortunately overlooked when I first analyzed the memo. In that paragraph, OLC concludes that in order to constitute "torture," "severe physical suffering "would have to be a condition of some extended duration or persistence as well as intensity." The category is, OLC reasoned, "reserved for distress that is 'severe' considering its intensity and duration or persistence, rather than merely mild or transitory."

This legal "analysis" is simply made of whole cloth. Well, not even. There's no cloth there at all. It is completely unsupported by, and contrary to, the plain words and structure of the statute -- which require that severe mental suffering be "prolonged" in order to constitute "torture," but that conspicuously fail to include a similar duration requirement for severe physical suffering. Nor is OLC's "duration" requirement supported by any other evidence or rule of statutory construction. OLC doesn't cite anything in support of its conclusion -- nothing worthy of mention in serious conversation, anyway. (In a footnote, OLC canvasses some dictionary definitions of the word "suffering." Suffice it to say that the footnote is so desperate, half-hearted and unconvincing -- indeed, it undermines OLC's interpretation of the statutory phrase -- that the less said about it the better, for the sake of OLC's long-term reputation. That those dictionary definitions were the best -- indeed, the only -- authorities OLC could come up with speaks volumes about its attempt to intepret the phrase "severe physical suffering" so as not to cover profound but "transitory" physical suffering, such as that resulting from waterboarding.)

Once I focused on it, it became obvious that OLC wrote that particular paragraph of the 2004 OLC Opinion not in order to provide any legitimate legal advice about the meaning of the phrase "severe physical suffering," but instead precisely with waterboarding in mind (since the whole point of waterboarding is that the suffering it induces is so severe and acute that it doesn't take long to "work"), and for the specific purpose of being able to conclude that OLC's former absurd advice -- that waterboarding is not "torture" -- was not affected by the new 2004 analysis of the statute. It is a desperate, horrifying piece of legal analysis -- as craven and unconvincing as (almost) anything in the 2002 memo.

It pains me to say that, not only because I think the 2004 memo is otherwise such a needed and welcome improvement over what came before, but also because I am a proud alum of the Office with great respect for the role OLC had traditionally played in our constitutional system. But OLC's analysis of the phrase "severe physical suffering" -- a disingenous bit of ipse dixit evidently ginned up merely in order that the Office would not have to condemn waterboarding as illegal -- is an unfortunate example of the Office at its nadir, acting not in its proper role as honest and faithful interpreter of law, but instead as apologist for the torturer, who, as the Court has noted, "has become--like the pirate and slave trader before him--hostis humani generis, an enemy of all mankind."

I'm not a lawyer, but I would have thought the way to make a (strained) argument that waterboarding is not torture under these rules is to argue that it causes fear but not pain and try to argue that this constitutes mental not physical suffering. This would then allow them to use the interpretation that transitory mental suffering doesn't count.

If I understand you correctly, the OLC is making the truly bizarre argument that suffering is inherently non-transitory and so any putative "transitory suffering" must not actually be suffering.

The argument I give above is obviously still highly strained. As I understand it, waterboarding instills fear instinctively without reference to higher mental processes. No doubt it overrides precedent. My point is it is just less facially absurd than the argument apparently made by the OLC.

The torture in the same class as piracy and slavery. That is a powerful description.

A lot of people do not consider waterboarding torture. I disagree--it is a form of non-leathal torture. If you ran a referendum of the narrow issue of waterboarding of Khalid Sheikh Mohammed in the United States, however, I suspect it would be approved. But if you really explained to people how this policy has caused far more harm than good, how it captured the innocent as well as the guilty, and how it has overall made us less safe--most people would reject it.

If the Administration merely restricted waterboarding and severe coercive force for those top dozen high value al Qaeda detainees--we probably wouldn't even be discussing it (because we would not have known about it). But if anything shows the slipperly slope danger of such a policy--it's Rumsfeld and Miller's hog wild use of the practice in DoD facilities.

I would have more respect for the Administration if it just argued the issue directly. But they do not want to get into issues of effectiveness.

It seems clear that if damages can be awarded for mental pain and suffering of the victims of an airplane crash, where the mental suffering is brief indeed and has no long-lasting effects (because of death, which is separately compensable), the conditions set forth in the memo are ludicrously lax.

If they didn't waterboard or otherwise use similar coercive tactics on Sheik Kalid Mohammad then somebody should be fired.

Its not torture in my opinion. We should be doing it on a selective basis with the illegal enemy combatants we capture, and while I would never participate in or condone real torture, I would have no problem personally holding the water hose over the Sheiks towel covered head.

Tony Snow says that "a dunk in the water" isn't necessarily waterboarding. Video here. He's totally full of shit, though. The question was in the context of a specific technique that the questioner said was controversial. There are no other methods of dunking someone in water that have been the subject of major controversy. And Lederman is right that "dunking" is hardly much better anyway And the list of 27 forbidden techniques he points out is just devastating to the premise of their argument.

Also, if waterboarding is a form of mock-execution (they feel like they're drowning), my understanding is that it would be illegal for independent reasons.

Thank you for writing this.

********

With regard to "the dog"'s comments:

1) It's Khalid Shaikh Mohammed, not "Sheik Kalid Mohammad." If you're going to suggest that someone be nearly killed (repeatedly), you should at least know ho the person is. This isn't a minor issue. Khalid el-Masri was raped and tortured because someone confused him with Khalid al-Masri.

2) It's not turture in your opinion, but you don't provide any analysis. Is it your opinion that repeated near-drowning is not "severe physical... suffering?" Or is your opinion that even after the military commissions act U.S. law defines torture too broadly? I'm not convinced you even read this post before making your judgment about this--nothing you says indicates you even know what the relevant issues are, let alone understand them.

You obviously have no idea what you're talking about, and the fact that you're willing to personally do this to someone without informing yourself or thinkng it through speaks volumes about your character.

If the Administration merely restricted waterboarding and severe coercive force for those top dozen high value al Qaeda detainees--we probably wouldn't even be discussing it (because we would not have known about it). But if anything shows the slipperly slope danger of such a policy--it's Rumsfeld and Miller's hog wild use of the practice in DoD facilities.

OIC. As long as we reserve the torture for those that we know are guilty and really deserve and need to be tortured, it's OK. Problem solved; we'll just put that codicil into law. ;-)

Thanks for the spelling and grammar lesson. However pointless it was since you knew about whom I was writing. In the future, I'll try to give all the thought and mental energy into remembering the correct spelling of the terrorist enemy combatant mastermind of 911's name that if deserves.

Dave asks: Is it your opinion that repeated near-drowning is not "severe physical... suffering?"

Well I don't know if waterboarding is actual near drowning or just feels like actual near drowning. However, in either case I would say yes it is NOT severe physical suffering because there are no permanent lasting physical effects. Gouging out eyes and slicing off body parts, hot iron pokers, hacking off heads, you know all the things the enemy does to our soldiers, these things are torture. A little dip before dinner isn't torture. By comparison its just a day at the beach.

Definitely not torture.

As a liberal judge I can make any decision I want. It doesn't have to be grounded in the law, constitution, or treaties of the United States, it just has to be my personal opinion dressed up in a 90 page suit of legal gobbledee gook. I thought you and those here favored the liberal judicial methodolgy of decision making? I mean if judges can take 90 pages to find a constitutional right to gay marriage, why I could take far less than that to find the constitutional right to self-defense supersedes all other laws and treaties in this area and allows the CIA to cut-off fingers and feed them to a local farmers pigs.

However, being such a moderate guy that I am, I draw the line (for now) at cutting off body parts and feeding them to pigs. A little facial with a towel and a water hose, why that's just a beauty treatment compared to the kinds of real torture dished out by the enemy against our captured soldiers and civilians.

To others who haven't bothered to listen to Cheney's actual words, he didn't say waterboarding, and his words made it clear he was speaking of his own PERSONAL opinion and not official government policy. I believe his exact words were something like "for me personally....". That's the expression of a personal opinion not official government policy.

@the dog:apparently as a right wing troll you can say whatever you want as well. I challenge you to find any passage in the New Jersey decision where judges gives gays a right (let alone a fundamental one) to marry. Your post in the thread about the decision itself was so ludicrous that almost noone bothered replying.

Try some part of legal reasoning, maybe just for once. Than I wouldn't consider you as annoying as I do.

We demean ourselves to discuss whether Cheney was referring to waterboarding. This is so not only because there is no doubt at all that he was. It is also so because it doesn't matter what he or Bush says. We know that they torture, so what difference does it make whether they acknowledge it? Bush says, over and over, "We don't torture." Would it matter if, starting tomorrow, he said, "We torture and we think that torturing, when we do it, is just fine"? No, it wouldn't, and that is because Bush's actions have already said, "We torture and we think that torturing, when we do it, is just fine." The only thing that matters is how we get him to stop, and how we punish him for it.

Following up on Jack's post, I would emphasize again that despite its constant pleas that it cannot publicly discuss the legality of particular interrogation techniques -- an argument that ultimately depends on the notion that the rule of law is incompatible with fighting wars, because it is inapprorpiate to inform the enemy of what one's legal limits might be -- the Administration is more than happy to enumerate, in significant detail, which techniques are not legally available. As I wrote last month...

How do you figure?

The fact that the government is willing to disclose in detail what techniques are illegal means that they do not think it is dangerous to let the enemy know what our legal limits might be. This is no big deal because those limits leave available a wide variety of interrogation techniques which do not involve severe pain or other forbidden results.

Therefore, the government appears to mean exactly what it says - we should not inform the enemy of what particular techniques we use to break their prisoners because the enemy, like us, can train to resist those techniques.

And, as noted above, the Army Field Manual released today goes into great and specific detail about what the military can, and cannot do, to its detainees. After all of these highly specific provisions are in the public record specifying what can and cannot be done within the law, it's no longer very persuasive to assert that the CIA's techniques cannot likewise be codified.

Of course, you can make that argument. The military and the CIA are distinct organizations which have been given separate missions.

The CIA handles high value targets like Khalid Sheik Muhammad and other officers of al Qaeda and they are the only organization (of which we know) that uses coercive interrogation techniques.

The military has been relegated to dealing with common enemy foot soldiers and enablers. Their new manual only allows common interrogation techniques because the targets do not have much information.

It's no secret that the CIA has used waterboarding, hypothermia and threats to detainees' families.

One more disclosure to the enemy for which we can think our incredibly irresponsible press.

Knowing that such techniques are legal would not make it any easier for detainees to resist them.

Of course such knowledge is useful. Our troops who undergo SERE training are subject to many of these techniques so they can resist them when captured. The ability to train for any situation makes you much more prepared to succeed than going in blind. It is the difference between a 1L trying a case without knowing the rules of civil procedure and an experienced trial lawyer.

In other words, if, in the Administration's view, waterboarding were clearly unlawful, it would say so publicly. The fact that it is unwilling to do so means that it is leaving open the possibility that the CIA may legally employ waterboarding.

How can that possibly be? I understand how the Vice President might think it is a "no brainer" that waterboarding can be used, because he and his staff do not think that the law binds the Executive branch at all...

No, it would be a "no brainer" to use water boarding because it is both highly effective in gaining intelligence and does in fact fall within the letter of the law - even if John McCain disagrees in a CYA spin after agreeing to the MCA.

It really says something about the state of our Nation, doesn't it, that the Administration's ludicrous defense of the Vice President's remarks is that he was referring not to waterboarding but instead to dunking detainees in water?

How is this ludicrous? The radio host used the term "dunking in water" in his question because he probably has no earthy idea what is involved with water boarding. In fact, another interrogation technique is to dunk a detainee in water until he is soaked and then expose him to the cold. The VP very well could be referring to this technique.

But let's put aside the Vice President. How could the Office of Legal Counsel possibly conclude that waterboarding is legal?

Easily. Water boarding induces temporary panic, not severe pain of any type. Thus, it does not violate the torture convention, the torture statute or the MCA.

Even if waterboarding were not "torture," as defined in the law, it would still violate at least three other legal prohibitions, even when conducted by the CIA (which is subject to fewer laws than the military). For example, waterboarding violates:

(i) The federal assault statute, 18 U.S.C. 113, which provides that simple assaults, or assaults by striking or beating, are misdemeanors if they occur "within the special maritime and territorial jurisdiction of the United States"

Professor, with all due respect, applying a civilian criminal simple assault statute to enemy combatants during a war is ludicrous. The enemy is assaulted and far worse on a routine basis during war. The MCA specifically addresses the handling of enemy combatants and establishes the law in this area.

(ii) Common Article 3's prohibition on all "cruel treatment and torture."

The MCA defines cruel treatment and torture for the purposes of enforcing Common Article 3 under US law.

(iii) The McCain Amendment's prohibition on cruel, inhuman and degrading treatment, which prohibits all conduct that would "shock the conscience" assuming the Due Process Clause applied. According to Justice Kennedy (almost certainly the dispositive vote as of now), this includes at the very least "torture or its close equivalents."

Congress did not define these terms under the McCain Amendment, but did so in the MCA, with Mr. McCain's support. The MCA will take precedence.

But one need not resort to these other legal constraints in this case, because waterboarding obviously is torture prohibited by the federal torture statute, 18 USC 2340-2340A.

This is the same definition as the MCA.

And as Human Rights Watch explains, the U.S. itself "has long considered waterboarding to be torture and a war crime.":

As early as 1901, a U.S. court martial sentenced Major Edwin Glenn to 10 years of hard labor for subjecting a suspected insurgent in the Philippines to the 'water cure.'

What is the "water cure" and was it legal at the time? Does HRW provide any facts of the case?

After World War II, U.S. military commissions successfully prosecuted as war criminals several Japanese soldiers who subjected American prisoners to waterboarding.

This is misleading to the point of being a lie. The Japanese referenced were convicted of a wide variety of tortures inflicting severe pain, not for waterboarding, and the water technique was not waterboarding.

A U.S. army officer was court-martialed in February 1968 for helping to waterboard a prisoner in Vietnam.

This is an easy distinction. Military regulations during Vietnam extended the Geneva Convention POW protections to unlawful combatants like the VC under the mistaken hope that the enemy would treat our lawful combatants according to the Geneva Conventions. You may not use coercive techniques against POWs. Thus, if the officer did water board the prisoner, it would have violated military regs in effect that the time.

And plainly, if our enemies used these techniques on U.S. military personnel, no one would, in public debate, deny that such a technique is a form of torture.

Apples and oranges. Our soldiers are uniformed legal combatants and are entitled to the protections of POWs under the Geneva Conventions. No coercive techniques can be used against POWs.

It is hard to imagine how OLC could possibly have concluded otherwise...perhaps OLC concluded that when it comes to waterboarding, the mental pain and suffering is intermittent and short-lived, rather than "prolonged" -- say, if the water-boarding lasts only a couple of minutes or less, and is not intended to result in any lasting mental suffering.

As I noted above, this is very likely OLC's eminently reasonable application of the definition of torture.

OK, but even if we assume that analysis is plausible (which is a stretch), and even assuming further that waterboarding does not result in physical pain, what about the prohibition on intended severe physical suffering? After all, the very purpose of waterboarding is to inflict a form of intense physical suffering that results in severe terror for one's life -- a terror that not even the most hardened criminals are said to be able to resist. According to one account reportedly promulgated by the CIA itself, "[u]navoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt."

It appears that the OLC is equating physical pain with physical suffering. However, even if there is some distinction between severe physical pain and physical suffering, creating mental fear is not close to the the creation of physical suffering.

It has been widely reported that the CIA used waterboarding to break Khalid Sheik Muhammad when all other techniques had failed. He disclosed a treasure trove of information identifying enemy cells and enemy plans to attack the United States.

With this background, I have a hypothetical for you folks who oppose waterboarding. Let us assume for the purposes of this hypothetical that waterboarding is legal. Let us also assume that the Unites States captured an al Qeada officer with probable knowledge of the location of enemy cells and enemy plans based on his position within the organization and involvement with past terrorist attacks.

If no other legal interrogation techniques worked, would you use waterboarding to break the al Qaeda officer or would you allow him to remain silent?

What if the interrogation would reveal another 9/11 killing thousands?

What of the interrogation would reveal a lesser train or bus bombing killing "only" hundreds?

Annie, there is just as much *real* legal reasoning in my posts you found so annoying as in the left wing activist decisions of the Massachusetts and New Jersey Supreme Courts regarding gay marriage.

If its legal reasoning you want then looking for it in the opinions of liberal dominated activist courts isn't a promising place to find any.

You've got to be kidding with your New Jersey didn't find a right to marriage statement. The New Jersey Supreme court used words that said but do not have the effect of ssm is not a fundamental right. By discovering rights nowhere written in the constitution in question that homosexuals have the constitutional right to exactly the same rights and benefits as heterosexual marriage, they have ruled that the legislature "must" pass legislation in compliance with their opinion (never mind the separation of powers issues with that little bit). That means the legislature must either remove all marriage statutes from the books or they must grant gay marriage. The ridiculously political stuff in the opinion trying to hide the cheese with they we will defer to the legislature on what to call it (and then consider later the question not now before the court that it must be called marriage) is a sham with which this activist court had hoped would work to insulate their dictate from the reaction of the overwhelming majority of the population that supports marriage ONLY as a union between a man and women.

These kinds of decisions cause the courts, all courts, to lose their moral authority over the people, and without a police force or army to enforce their dictates a loss of their moral authority means a loss of their real authority. It will mean a loss of their independence as well. I don't think the loss of the court systems moral authority to bind the people and the loss of their independence to necessarily be a good thing for the long-term in the country. However, making all federal judges (including the Supreme Court judges) and all state court judges run for election in party affiliated elections with their votes connected to the party line vote lever every 6 years or less would be far better for the preservation of our republic than continuing to allow the judicial branch to aggregate governing and legislative power within their unelected, unrepresentative sphere of control.

The same laws that mandate the party affiliated election of all judges to no more than 6 year terms should also mandate that state bar associations and other state laws may not regulate in any way the speech and campaign activities of judicial candidates. They must be free to state in their campaigns how the interpret the laws and constitution of the applicable venue and how they would rule on a given fact situation if elected.

Only such free speech, free expression of thought and free election of party affiliated judges could cure the unelected unrepresentative nature of these would be dictators in black robes.

Gee Annie if the above didn't annoy you so more then I guess I'll have to try harder. Please keep in mind I sincerely mean every word, comma, and period above. Its not written to inflame you or anyone else. Its written to present a point of view and political thinking that while perhaps not present in Yale is very present in a very large segment (dare say perhaps a majority) of the "people".

Bart DePalma: What if allowing waterboarding or any other form of torture "hypothetically" resulted in hundreds of innocent people being tortured and dozens of them dying as a result of their having been tortured. What if allowing torture resulted in a great increase in the number of Islamic terrorists, and what if allowing torture resulted in U.S. troops being placed in greater danger, not only because the chance of their being tortured if they were captured increased, but because insurgents would be less likely to surrender, knowing that the U.S. tortures its prisoners.

If U.S. law prohibited torture, and you captured an al Qeada officer with probable knowledge of the location of enemy cells and enemy plans, then you should have to choose whether to obey the law or to engage in torture and risk paying the penalty. Faced with that choice, you might consider that torture does not work. But, if you tortured your prisoner and your doing so, miraculously, saved lives, then the government might well choose not to prosecute you, or, if it did, the judge would be lenient or the President would pardon you. Public opinion would demand it.

a terror that not even the most hardened criminals are said to be able to resist. According to one account reportedly promulgated by the CIA itself, "[u]navoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt."

JB, I certainly hope this description is correct. I wish some of the surviving family members from 9/11 victims or soldiers who have fallen in the protection of our freedom since 9/11 could have been there to watch, celebrate, and throw one on the "barbie" for me.

Yes, it should. I respect the matter of interpretation that supplies so much analysis here, but w/o acceptance of core fundamentals it really won't take you anywhere.

We will undergo the sort of wordplay involved here, the sort that once upon a time truly intelligent people used to justify the int'l slave trade. Since slavery in various forms exists until today, dare not think somehow we are "beyond" this sort of thing.

Slavery, like torture, is a violation of int'l law. But, under the MCA, this sort of thing is semi-useful trivia, non-germane to analysis in the courts. Well, U.S. courts.

Joe, how is a facial with a wet towel and a water hose anything akin to slavery? Also, slavery involves the concept of an innocent person not engaged in say illegal enemy combat operations being held and forced to work against their will. Whereas a little dip in the water before breakfast for an illegal enemy combatant is not only just a taste of what they have coming (because a bullet in the head is what they have coming) but a day at a luxury spa by comparison to slavery.

"The Dog": It's interesting that you refer to U.S. torture victims as "illegal enemy combatants" when most have not even been charged with a crime, and it is clear that many, if not practically all at Guantanamo and Abu Ghraib (and the Canadian we subjected to "extraordinary rendition") are innocent. We know that many at Guantanamo were not captured on the battlefield, but were handed over in exchange for money, and the Red Cross said that 90% at Abu Ghraib were innocent, which can only mean that they were picked up at random. It seems to me that the U.S. is the "illegal enemy combatant" in Iraq.

In an earlier post you said that the military is not allowed to engage in coercive interrogation because they were capturing only foot soldiers with limited information. Yet later you said:

What if the waterboarding would only save a single US soldier?

Would you use waterboarding or allow the enemy to kill our citizens?

What is two minutes of panic compared with saving even a single life?

Taking your reasoning to its logical conclusion, our soldiers should waterboard every single captive they take because any one of them might have information that could save the life of at least one soldier.

Bart DePalma: What if allowing waterboarding or any other form of torture "hypothetically" resulted in hundreds of innocent people being tortured and dozens of them dying as a result of their having been tortured.

I can see you are not taking this seriously. This is not a game of guess how many angels can dance on a pin head. This is real life.

I'll take your refusal to answer a reasonable hypothetical as an admission that you would allow the next Kahlid Sheik Muhammad to conceal his plans to kill our citizens rather than subjecting him to panic.

Bart: In an earlier post you said that the military is not allowed to engage in coercive interrogation because they were capturing only foot soldiers with limited information. Yet later you said:

What if the waterboarding would only save a single US soldier?

Would you use waterboarding or allow the enemy to kill our citizens?

What is two minutes of panic compared with saving even a single life?

Taking your reasoning to its logical conclusion, our soldiers should waterboard every single captive they take because any one of them might have information that could save the life of at least one soldier.

Are you willing to be consistent here?

You have lost me.

What is inconsistent about noting the fact that the Administration has made a recent policy decision to limit the use of coercive techniques to the CIA and the fact that the information gained by the CIA in my hypothetical might save a US soldier?

These are not mutually exclusive statements.

I notice that you have joined henry in declining to give an answer to my real life hypothetical. Indeed, no one has had the guts to give me a straight answer.

There are real life and death consequences to limiting our intelligence gathering whether you want to acknowledge them or not.

Henry, if you think the USA is the illegal enemy combatant than I think you should get a ticket to Afghanistan and join up with the Taliban to fight the USA.

Henry, its interesting that you think illegal enemy combatants should be charged with a crime. We do not charge enemy combatants with crimes unless we want to put them to death or sentence them to a term of years beyond the end of hostilities. Enemy combatants are NOT criminals they are they enemy. Some of them might have committed war crimes but that is different from run of the mill criminal activity.

The fact that liberals can't tell the difference between Bush and Hitler and an ordinary run of the mill citizen criminal and the enemy is exactly why the republicans are going to retain control of both houses on November 7, when if the Democrats actual represented a rational alternative would absolutely clean up on the republicans this mid-term election.

Criminal law analogies are inapplicable to the enemy. As regards the Canadian you fret so much about, his own Canadian government told the USA he was a terrorist and caused the USA to render him as you say.

As to innocents at Gitmo, a high percentage of those released over the last couple of years have returned to the battlefield and their terrorist operations and been caught again in the act of conducting war against the USA.

The USA has detained 10's of thousands of people in Afghanistan. They were given reviews in Afghanistan and out of 10's of thousands only around 750, the worst of the worst, were brought to gitmo.

Is it possible that among the approximately 500 illegal enemy combatants detained at gitmo that there is an innocent person who was just some guy serving coffee to the enemy when he was captured. Yeah that's possible. To that the answer is "shit happens in war". Sometimes when shit happens there is collateral damage and an innocent person gets killed during an engagement with the enemy. Likewise its possible that while engaging the enemy an innocent person could be misidentified and wrongly held as an enemy combatant. Well, while that is regrettable in an absolute sense that's the kind of thing that happens in war. That innocent person is walking alive collateral damage as opposed to the dead kind of collateral damage.

You can't fight a war without some collateral damage. The only alternative is to surrender and not defend oneself.

To sum your worries up where they belong, just remember the phrase "shit Happens". So sad, so sorry, bye bye.

Funny how the prisoners left behind at Abu Ghraib when we turned it over to the Iraqi's literally begged and pleaded that they be taken to a new USA run prison compound. They did this because they knew the USA treats its prisoners FAR BETTER than the Iraqis were going to treat them.

"Dog" wrote: "Henry, its interesting that you think illegal enemy combatants should be charged with a crime. We do not charge enemy combatants with crimes unless we want to put them to death or sentence them to a term of years beyond the end of hostilities."

"Dog," You used the word "illegal." I took that to mean that you believed that our torture victims had committed crimes. In light of the fact that they had not been charged with committing a crime, I saw no basis for that belief.

Bart: At 11:06 p.m., you stated that, in my 8:29 p.m. posting, I did not answer the hypothetical you posed at 8:09 p.m. Perhaps you did not get to the second paragraph of my 8:29 posting, which does answer your hypothetical.

Postcript to Dog: At 10:26, I suggested that the U.S. is the "illegal enemy combatant" in Iraq, not in Afghanistan (as you misread my remark), because I believe that the U.S. invasion of Iraq violated international law. Again, I take "illegal" to mean "in violation of law."

The military has been relegated to dealing with common enemy foot soldiers and enablers. Their new manual only allows common interrogation techniques because the targets do not have much information.

OIC. Now we're exercising forbearance here and not torturing such people, not because it's a travesty and violation of the Geneva Conventions, but rather, because they don't know anything ... but we could if we wanted to....

"Bart" DePalma floats the old "Ticking Time Bomb" ("TTB") lead ballon again:

With this background, I have a hypothetical for you folks who oppose waterboarding. Let us assume for the purposes of this hypothetical that waterboarding is legal. Let us also assume that the Unites States captured an al Qeada officer with probable knowledge of the location of enemy cells and enemy plans based on his position within the organization and involvement with past terrorist attacks.

If no other legal interrogation techniques worked, would you use waterboarding to break the al Qaeda officer or would you allow him to remain silent?

The standard arguments against the TTB 'argument' apply. I've covered them already here, as have others.

As usual, the question of what you should (or would) do under such hypothetical circumstances is independent of the question of whether torture should be legal. And, of course, the situation is not so clear as "Bart"'s neat little hypothetical (yet "Bart" would have the law cover all circumstances even those not anywhere near his hypothetical). In particular, perhaps the use of torture to divine the information that Iraq had WoMD, biolgical weapons, and a al-Qaeda training camp at Salman Pak was is little bit of a misuse of the torture privilege. "Bart", never one to let actual facts from actual real situations interfere with his made-up ones, will ignore this, though.... See here for more on the al-Libi fiasco.

Honestly, I'm not sure "Dog" is supposed be taken seriously or not; we have a local sports guy here nicknamed "mad dog." We take him semi-seriously, but he does have something useful to say now and again.

As to his reply to me, he apparently isn't impress with the technique at issue. This is hard to take seriously given the horrible nature of the matter, but so be it. The bottom line is that torture is akin to slavery, both being currently violations of int'l law, deemed a crime against humanity.

Again, loads at the time thought it ridiculous to say slavery was such a crime. In fact, even Justice Story eventually had to admit that horrible as it was the slave trade in some respects was not a violation of int'l law. See, The Antelope.

So, it's not surprising some continue to justify and belittle torture, refusing to call a spade a spade. No shock there. The people talking about how they benignly treated their "servants" might nod in agreement.

I can see you are not taking this seriously. This is not a game of guess how many angels can dance on a pin head. This is real life.

No. al-Libi is real life. Maher Arar and Khalid el-Masri are real life. "Bart"'s hypothetical is an episode of "24" -- that is to say, pure fiction -- and both "Bart" and his hypothetical should be treated appropriately.

"Cruelty might become an instrument of tyranny; of zeal for a purpose, either honest or sinister."

-- Weems v. U.S. (1910)

This becomes more relevant after reading the Evan Wallach article cited above (thanks). The case involved punishment in the Phillippines, which a few years earlier was the locale of an ugly counterinsurgency campaign.

One technique used (by us) was waterboarding sort techniques. This was recognized as "torture" at the time. It also was so deemed when the Japanese did it during WWII.

"Well, I was put on my back on the floor with my arms and legs stretched out, one guard holding each limb. The towel was wrapped around my face and put across my face and water poured on. They poured water on this towel until I was almost unconscious from strangulation, then they would let up until I’d get my breath, then they’d start over again."

It again was when a renegade sheriff was convicted of such techniques in the 1980s.

Some busy sorts online also have found a medieval drawing of the technique, which also labeled it as such. One might say we are being "medieval," but I guess some who support the practice would not see this as a bad thing.

FYI Gordon Wood, the historian, has a good new book out (Revolutionary Characters) that in part discusses how Madison et. al. supported the Revolution to guard against such abuse of executive power, war mongering, and perversion of rational int'l relations.

Bart, you find full details here: Forthcoming, The Columbia Journal of Transnational Law...

Thanks for the link. I will enjoy reading the article.

As for the rest of your nonsense... 1) The Geneva conventions forbid coercive methods against civilians accused of crimes too.

This is true. However, we are dealing with unlawful enemy combatants fighting as civilians, not civilians.

The fact that unlawful enemy combatants fight as civilians mean that civilians will inevitably be mistakenly detained. This is the fault of the enemy fighting as civilians making it more difficult to identify them. That is why fighting as a civilian is a war crime and the Geneva Convention POW protections are not extended to these unlawful combatants.

The task of the military is to make a reasonable determination to distinguish between the two. Given that the military has identified and released dozens of civilians or enemy combatants no longer considered hostile indicates that the military status hearings work.

2) If the President says that a two year old girl in Chicago is an "enemy combatant" are you going to believe him and would that "determiniation" have any lawful basis?

1) The president has not declared anyone an enemy combatant. That determination is made by a military commission at a status hearing.

2) The military has never made such a ridiculous declaration as you postulate.

Bart: At 11:06 p.m., you stated that, in my 8:29 p.m. posting, I did not answer the hypothetical you posed at 8:09 p.m. Perhaps you did not get to the second paragraph of my 8:29 posting, which does answer your hypothetical...

No, you made up your own alternative hypo to avoid answering my question...

If U.S. law prohibited torture, and you captured an al Qeada officer with probable knowledge of the location of enemy cells and enemy plans, then you should have to choose whether to obey the law or to engage in torture and risk paying the penalty. Faced with that choice, you might consider that torture does not work. But, if you tortured your prisoner and your doing so, miraculously, saved lives, then the government might well choose not to prosecute you, or, if it did, the judge would be lenient or the President would pardon you. Public opinion would demand it.

This is true. However, we are dealing with unlawful enemy combatants fighting as civilians, not civilians.

"Bart" manufactures a new, third class: "unlawful enemy combatant" (as the maladministration has tried to do as well). It doesn't exist. People are either combatants or civilians. There's no loophole, no "black hole" into which "Bart"'s "illegal enemy combatants" fall in. See here, for instance. There is no Fifth Geneva Convention Relative to the Treatment of Illegal Enemy Combatants.

The fact that unlawful enemy combatants fight as civilians mean that civilians will inevitably be mistakenly detained. This is the fault of the enemy fighting as civilians making it more difficult to identify them....

But the burden will fall on civilians. Innocent cvilians. "Bart" pretends that it is not the U.S. but the "illegal enemy combatants" that are holding innocents in Guantánamo. The Republican way of "bringing responsibility back to gummint", you know.... "Bart"'s pretensions here absolve (in his mind) the U.S. from doing anything about the problem. But in fact, the Geneva Conventions prescribe the duties of the party that is holding detainees: They must be afforded hearings and they must be afforded the right to challenge the basis for their detention. Of course, Dubya and his maladministration resisted this obligation until the courts stepped in, and now they're trying to rig it so as to deny detainees of any practical or fair recourse even if they are granted their CSRT hearings (and as pointed out by Prof. Lederman here, IIRC, there's a loohole even there for detention without even the minimal CSRT). I'm not sure what "Bart"'s animosity is towards doing a fair and accurate job of determining combatant status for detainees; perhaps he thinks that some people might be let free, and that anyone let free migt be a potential terrorist. But in my mind, that would only argue for fuller and more complete hearings, to reduce the risk of errors (f both Type I and Type II).

That is why fighting as a civilian is a war crime and the Geneva Convention POW protections are not extended to these unlawful combatants.

Nonsense. "Fighting as a civilian" may or may not be a "war crime" depending on the particulars. But if it is -- for one particular individual -- then the individual could and should be charged with that crime, and if guilty, imprisoned or otherwise punished. Withholding the Geneva Convention protections for all is hardly the proper response, either legally or practically.

Bart: You're right that I didn't answer your hypothetical. I addressed the situation where torture is illegal, overlooking your proviso, "Let us assume for the purposes of this hypothetical that waterboarding is legal." I thought, and continue to think, that the important question is whether waterboarding or other forms of torture should be legal. As Arne said at 10:36 a.m., the "question of what you should (or would) do under such hypothetical circumstances is independent of the question of whether torture should be legal." The former question, which is essentially yours, does not interest me.

[Henry said]: Bart: At 11:06 p.m., you stated that, in my 8:29 p.m. posting, I did not answer the hypothetical you posed at 8:09 p.m. Perhaps you did not get to the second paragraph of my 8:29 posting, which does answer your hypothetical...

["Bart" said]: No, you made up your own alternative hypo to avoid answering my question...

Not true. As I pointed out above, "Bart"'s original questions was "what would you do?" Henry gave a perfectly adequate response to that. Now "Bart" is trying to pretend that he asked "how should we make the laws in advance of the potential occurence of my "24"-esque hypothetical?" As I pointed out above (and as Bart ignored), that's simply false. But par for the course for "Bart" and his rhetorical technique. It is "Bart" here that wants a new hypothetical. If so, he should be honest and ask that directly. BTW, I've already answered his new hypothetical. In fact, almost two years ago: " Torture can be just the ticket ... just keep it illegal, please." (same link as the one from my post above).

Bart: You're right that I didn't answer your hypothetical. I addressed the situation where torture is illegal, overlooking your proviso, "Let us assume for the purposes of this hypothetical that waterboarding is legal."

I also overlooked that proviso. Strange proviso to put in, when the subject of the debate is whether waterboarding should be legal. That's "assuming your concusion", in my book.

So let's say just for argument that murder is legal. Now would "Bart" go out on an axe-murdering binge then? Perhaps he would, perhaps he wouldn't. Perhaps he'd just go out and cap some "Donkeys". Not sure that tells me anything useful as to whether murder should be legalized ... and about the only reason I can think of that such would matter is if it turned out the nobody would murder even if murder was legalized (in which case any such law would be ineffectual and unnecessary, but nonetheless essentially harmless even if it remained in place).

But my apologies for missing "Bart"'s little addendum to the standard "TTB" hypothetical ... careless of me, I guess.

http://nafeez.blogspot.com/2006/10/source-reveals-cia-electro-shock.htmlThey are using waterboarding as a distraction even though we have prosecuted others for using waterboarding. If you think zapping your balls isn't torture lets give it a try. For that matter, if you think near death experiences don't have long term effects lets see you give it a try.

"It is even a fun game to allow anyone who is willing to give a donation to a Serviceman’s widows organization, to crank the handle." Fun?

As the evidence is that torture itself tends to throw up too much misinformation ('I'll say anything to make this stop'), an intriguing and more realistic counter-TTB would have Bart having the responsibility for evacuating a large city centre on the basis of 'reliable' but only partial information, in what would be a cry-wolf scenario.

The fear of probable torture is another matter and rather more efficacious (increasing defections etc), but it is also the badge of the police state. The non-committal on water-boarding seems just such a tactic. How this reconciles with the moral high ground might best be assessed by reconsidering the future of a website such as this one.

I cannot stand these "ends justify the means" rants from Bart and Dog. Where are the principles at stake here? It is not as if we cannot fights wars without principles, even in an insurgency. It is not as if we could not hold these people as prisoners, or extract information from them, unless we resort to not charging them and torturing them. Seriously, all we have to do is charge them. What is so hard about that?

The rule of law is all we have, folks. It has been used successfully for centuries to prosecute criminals, and it is the foundation of American values. Sure, it may cause minor brain damage to follow the law, but that's the entire point.

Arne, Anne, others: I'd like to share some slightly tangential thoughts. It seems a strange thing that a Bart DePalma or a "the Dog" would take such great pains to vandalize a venue such as this with partisan thuggery. For me it highlights a generic issue of how "we" need to respond to "them." By "them" I mean anyone inclined to feign legitimate discourse while in actuality pursuing an agenda of partisan bullying. By "us" I mean anyone inclined to mistake feigned legitimate discourse for the real thing. It's a recurring theme and I think one that needs to be revisited as often as it takes.

One view is that "we" tend to get the shitty end of the stick in such exchanges because we accept the "frames" of "they" offer. That is part of the problem, but to my eye only a superficial matter. Deeper than the "frames" offered by someone like Bart is the "meta-frame" in which all discussions take place. The Republican party, under the leadership of folks like Gingrich and Rove, have made a study of polarizing thought in service of building group identity. If you are a partisan of these folks, if you are one of "them" then everyone else is fair game. "We" are unworthy of their respect, in their eyes, "we" are unworthy of fair play, in their eyes, for we are not part of their group. "We" can be demonized, both by outright accusation and by oily implication, and "we" deserve it, in their eyes, for we are not of them. Evidence of this is perhaps most directly seen in Gingrich's note on Language: A Key Mechanism of Control circulated to GOP members in 1997.

From the moment one, or a group, adopts such measures they are on dangerous ground, because the use of such language comes at a cost---repeated often enough, to oneself and others, one comes to take as real the same labels once applied as a matter of cynical strategem. Once the Rove/Gingrich machine allowed itself to adopt such intellectually dishonest and ideologically repugnant methods it had in fact sewn the seeds of its own eventual demise, for the more the party relies on such bigoted discription of its opponents the less contact with the realities of common interest between and among both parties. The question becomes not if this system of dishonesty will fall, but rather a question of when, and of how much evil it will do as a result of having conceptually yoked itself to such an evil view of non-partisans.

The other question, of course, is how "we" should deal with them. The first step is to admit that not everyone who *says* they want dialog actually want dialog, to admit that there are plenty of folks who will whine that you don't play fair as a means of engaging you but who themselves have no intention of playing fair. Simply decline to engage these folks; put your energy elsewhere. Unlike physical bullies these folks can and should be ignored. "Don't feed the trolls" is perhaps the most sage advice to come to us from the age of the internet. Learn to recognize the many signs of partisan bullying and simply refuse to engage. The only reason they flourish here or anywhere is "we" misguidedly feed their egos by taking as real their counterfeit "dialogs."

Folks like Bart and "the Dog" are not here to learn, they are not here to share, they are not here to pursue deeper truths. They are here to piss in "our" lemonade. And as long as comments are more or less open to the public we will always have "them" and theirs. But we do not need to feed them; we give them far too much when we take their proffered bait.

Arne, Anne, others: I'd like to share some slightly tangential thoughts. It seems a strange thing that a Bart DePalma or a "the Dog" would take such great pains to vandalize a venue such as this with partisan thuggery. For me it highlights a generic issue of how "we" need to respond to "them."

My friend, I would like to think that the proper and effective defense of this country is not a partisan issue but rather a fundament concern of all Americans. I see Elephants and Donkeys on both sides of the issues we are discussing here.

I think what you whiningly call "thuggery" and "pissing in your lemonade" are simply effective arguments which make you uncomfortable and challenge your world view.

One view is that "we" tend to get the shitty end of the stick in such exchanges because we accept the "frames" of "they" offer. That is part of the problem, but to my eye only a superficial matter. Deeper than the "frames" offered by someone like Bart is the "meta-frame" in which all discussions take place. The Republican party, under the leadership of folks like Gingrich and Rove, have made a study of polarizing thought in service of building group identity. If you are a partisan of these folks, if you are one of "them" then everyone else is fair game. "We" are unworthy of their respect, in their eyes, "we" are unworthy of fair play, in their eyes, for we are not part of their group. "We" can be demonized, both by outright accusation and by oily implication, and "we" deserve it, in their eyes, for we are not of them. Evidence of this is perhaps most directly seen in Gingrich's note on Language: A Key Mechanism of Control circulated to GOP members in 1997.

Robert, in order to have a debate, you have to frame the questions or otherwise you talk past one another. When engaged in a debate, you make persuasive arguments for your point of view. Words are the tools for making effective arguments. Gingrich is a fine debater and simply offered his often far less skilled GOP colleagues the words which would get their arguments across to the best effect.

Folks like Bart and "the Dog" are not here to learn, they are not here to share, they are not here to pursue deeper truths. They are here to piss in "our" lemonade.

I am here to debate issues of law and public policy. Debate challenging assumptions is how honest people find the truth.

Bart: When engaged in a debate, you make persuasive arguments for your point of view.

You might do better with the first person pronoun, but nonetheless you make my point for me. Sadly there is no known way to require people to only be persuaded by sound argumentation, nor to make truth and accuracy the criteria rather than merely one's point of view. I understand persuasion is your goal and support of your point of view the motivation. Some of us, my friend, have our sights set a little higher. Peace.

True enough Robert, but I do think people here know the nature of Bart's (also a fav. at Glenn Greenwald) m.o. Given the extremity of his approach (others do things with a bit more finesse), some probably have fun sparring with "trolls." There is obviously various reasons people post on these boards, reasoned back-and-forth only one of them. Also, refuting them serves an educational function, even if it is clear one will not convince trolls and their fans.

One of the links referred to the likes of Bill O'Reilly. Bart and Dog simply are not in their class. Also, BOR basically is on record being afraid of real competition, taking on usual easy targets as well as controlling the debate.

The rule of law has been progressively been thrown by the wayside by the activist courts in this country who ignore the "law" and create their own "law" or should I say more accurately issue their own dictatorial edicts.

The Massachussetts and New Jersery Supreme Courts threw out the rule of law in the gay marriage cases. The U.S. Supreme Court threw out the rule of law in Kelo, Hamdi, Rasul, and Hamdan.

All we *USED* to have was the rule of law, and some of us are getting damn tired of the "rule of law" being a code phrase for ignoring the law, statutes, constitutions, and referendums of the people by unelected would be rulers issuing their dictates from on top of the mountain.

The relationship between slavery and torture is indeed a close one. Among other things, slaveholders use torture to maintain their control over their slaves.# posted by Mark Field : 1:58 PM

Their are also many other relationships between slavery and things of today. Slave masters provided some amount of food to the slaves and their are people today who provide food to others. Slave masters provided housing of sorts to their slaves and their are people today who provide housing to others.

These acts of providing food and housing today have just as much to do with slavery as does your comparison above. If viewed as government programs enabling people to continue to be poor, hungry, and dependent on government those who advocate for these programs have a much closer connection to slavery than the CIA questioning terrorists who want to kill our children.

Postcript to Dog: At 10:26, I suggested that the U.S. is the "illegal enemy combatant" in Iraq, not in Afghanistan (as you misread my remark), because I believe that the U.S. invasion of Iraq violated international law. Again, I take "illegal" to mean "in violation of law."# posted by Henry : 7:15 AM

Illegal enemy combatant does not refer to a war crime being committed necessarily. It can just refer to their status as non-uniformed, non-state affiliated combatants and it is this status that makes their war operations illegal as in not sponsored by an actual government. It distinguishes them from legal enemy combatants better known as prisoners of war or the enemy.

Preemptive self-defense is still self defense and no law or treaty can excise this right.

I see Robert Link makes the plea for censorship through non-engagement of thoughts not officially approved by the lefties and then concludes with this little tale tale statement to Bart:

Some of us, my friend, have our sights set a little higher.

Higher? Self serving calls for censorship of dissenting views by a smug self-important elitist convinced of his all knowing all goodness and light open liberal mind is exactly my idea of setting one's sights a little higher.

Bart: "This is true. However, we are dealing with unlawful enemy combatants fighting as civilians, not civilians."

Wrong: you're dealing with civilians who have been accused of crimes.

Before the MCA there was no basis in law for calling anyone an "unlawful enemy combatant." Under the MCA the term literally means someone that the president accuses of being "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)."

The MCA presumes the mere accusation is a fact, but the facts show that such accuastions have often been made purely on suspicion or guilt by assocation, and that the "Combatnat Status Review Tribunals" are a farce that exist merely to rubber stamp accusations.

Boil all of this nonsense down and what you're left with is the notion that some accused criminals don't deserve a fair trial in a real courtroom because the President that some accused criminals don't deserve a fair trial in a real courtroom.

That notion is absiolutely inconsistant with any rational concept of law.

* Bart: "The fact that unlawful enemy combatants fight as civilians mean that civilians will inevitably be mistakenly detained. This is the fault of the enemy fighting as civilians making it more difficult to identify them.

Oh, you mean like the way the authorities sometimes arrest innocent people for crimes committed by criminals?

Give me a break. That's just sophist hot air to sell prejudiced assumptions as indisputable facts. Such arguments are fraudulent.

* Bart: "That is why fighting as a civilian is a war crime and the Geneva Convention POW protections are not extended to these unlawful combatants."

BS. POW protection applies to anyone it does apply to regardless of any war crimes they may have committed -- and anyone who isn't a POW under Geneva III is protected as a civilian by Geneva IV.

* Bart: "The task of the military is to make a reasonable determination to distinguish between the two. Given that the military has identified and released dozens of civilians or enemy combatants no longer considered hostile indicates that the military status hearings work."

Balony. They didn't hold a single hearing until after the Rasul decision, and what the evidence shows is that they detained a great many of these people on the basis of suspicion and false allegations. The hearings themselves are a farce -- read the transcripts.

* Charly: "If the President says that a two year old girl in Chicago is an "enemy combatant" are you going to believe him and would that "determiniation" have any lawful basis?"

Bart: "1) The president has not declared anyone an enemy combatant. That determination is made by a military commission at a status hearing."

Wrong. You've got it exactly backwards: a CSRT is a "Combatant Status REVIEW Tribunal," and the first CSRTs didn't take place until 2.5 years *after* gitmo opened for business. To this day, NO CSRT has ever considered the one question that they could properly consider: whether or not a particular prisoner is in fact a POW under GPW art. 4. The only purpose of the CSRTs is to create a false veneer of legitimacy: people are being held on the basis that they are guilty until proven innocent.

* Bart: "2) The military has never made such a ridiculous declaration as you postulate."

Whether or not they have is irrelevant -- YOU and the administration claim they have the authority to make such determinations without any real basis in law and absent meaningful judicial review.

That any given statement may be either true or false, or any particular person be either telling the truth, mistaken, or lying is trivial.

The point is that there is nothing in the US Constitution that would suggest the President may rightly or lawfully operate like Caligula Caesar or Adolf Hitler as a law unto himself.

And that is precisely what YOU are claiming Bart, which is as ridiculous as it gets. We didn't revolt against George III because we thought our leaders needed absolute powers in peace OR war.

Mr. Bush and his administration are WAR CRIMINALS, and that is ALL that they are.

["Bart"]: "The fact that unlawful enemy combatants fight as civilians mean that civilians will inevitably be mistakenly detained. This is the fault of the enemy fighting as civilians making it more difficult to identify them.

Oh, you mean like the way the authorities sometimes arrest innocent people for crimes committed by criminals?

It is true that, unfortunately, some people are accused, arrested, and detained for crimes of which they are innocent. One would hope that two conditions prevail: That they are afforded a fair trial to assess that truth of the accusations, and that this trial be, if the accused so desired, "speedy" so that they are detained no longer than necessary.

Of course, the maladministration has resisted even giving the detainees trials, much less "speedy" ones, and is now angling for "show trials" where the gummint is the police, prosecutor, jailor, judge, "defence attorney", jury, warden, and executioner. All the protections that our legal system has developed to prevent unfounded convictions (and the advent of advanced forensics such as DNA testing is showing all the time that even the extensive ones we have are insufficient to protect against imprisonment of the innocent) are being short-circuited by the maladministration (e.g., hearsay evidence, "evidence" collected under torture, the right to cross-examine witnesses) so that they may detain who they will (or, more to the point, who they have already detained, as the record suggests that most of the Guantánamo detainees have no affiliation to either al Qaeda or the Taliban, and an embarrassing slew of court cases would make the maladministration look like eedjits, incompetents, or worse).

Innocents are occasionally arrested. It is our duty as civilised people to make sure that the incidence of such is as low as possible, and the duration of such is as low as possible. The actions of the maladministration and the laws they have sought (which "Bart" defends here and elsewhere) are intended not to achieve this, but rather to cause the least political and legal damage to the maladministration.

The only reason they flourish here or anywhere is "we" misguidedly feed their egos by taking as real their counterfeit "dialogs."

Oh, believe me, I've never made that mistake. I've "engaged" these types for well around a decade now in various fora. And I think I've pointed out that they have no real desire to actually "discuss" anything. I restrict myself to pointing out the many absurdities and falsehoods that emerge, for the benefit of any on-lookers that might be inclined to believe that their 'arguments' have any soundness or the potential for at least a superficial appeal.

I do agree that they are masters (or, more accurately, parrots for the actual masters) at "framing". "Bart"'s latest panegyrics in praise of torture are just that, as is his carefully couched "hypothetical". "Framing" is effective for those that don't take the time or effort to examine an issue, and don't look at it from multiple angles. Why "Bart" et.al. think that a forum inhabited principally by lawyers -- who are themselves quite skilled at this, and whose livelihood requires that they consider the merits of countervailing arguments (there are no "killer arguments" in court; those cases almost inevitably never make it that far) -- will be susceptible to such efforts at "framing" is beyond me.

But I will combat their attempts to "frame" the issue to their advantage vigourously; see above for my rejection of "Bart"'s hypothetical as somehow dispositive (or even illustrative) on the torture question. Hypotheticals tend to make bad law, and counterfactual and extreme hypotheticals always do.

Folks like Bart and "the Dog" are not here to learn, they are not here to share, they are not here to pursue deeper truths.

Quite true. But I am. And if part of that is exposing people like "Bart" for what they are, that is what I shall do.

My friend, I would like to think that the proper and effective defense of this country is not a partisan issue but rather a fundament concern of all Americans....

But "Bart" is willing to call anyone who disagrees with him as to the best approach to do so a 'traitor' or worse.

I see Elephants and Donkeys on both sides of the issues we are discussing here.

Malarkey. "Bart" has viciously trashed John Murtha, for instance, for "discussing [...] the issues". He's not interested in any discussion; he's out for the blood of anyone who criticises the Chimperor.

I think what you whiningly call "thuggery" and "pissing in your lemonade" are simply effective arguments which make you uncomfortable and challenge your world view.

No. What is "pissing in the lemonade" is puttting together counterfactual or irrelevant hypotheticals, and not responding to substantive criticisms of one's own position.

"Bart" thinks we're "uncomfortable". This shows once again how out of touch (no, "divorced" is probably more accurate, if not "completely unacquainted") he is with reality.

...

I am here to debate issues of law and public policy. Debate challenging assumptions is how honest people find the truth.

No. "Bart" is not here to "debate". "Debate" implies responding to the arguments of the opponents. He's here to spew RW and maladministration "talking points". It is, as both Robert and I have pointed out, solely a one-way communication. That bears noting ... and responding appropriately.

The dog: ?Preemptive self-defense is still self defense and no law or treaty can excise this right.

The High Dog has spoken and thus so shall it be... The first leader in recent history to say that a preventive war is "law", was GWB. There has been legal discussions about one case of a preemtive strike, but never has anyone come up with a source to say that preemtive self defense is a alienable right.

The problem with the TTB is in the framing. The framer assumes that because of some godlike powers we know, wether a person is an enemy combatant or a Qaeda or not. It presupposes that we just have to him to say that. So we are allowed to torture.

Once the godlike powers are not taken into consideration, the captive may just be innocent and might torture an innocent man.

In onder to overcome this fallacy, an ends justify the means approach is used. Beginning with a situation where a whole city will be saved by torturing 1 guilty man, Bart et all think torture of an potential innocent man is justified because one life might be saved.

[Henry]: Postcript to Dog: At 10:26, I suggested that the U.S. is the "illegal enemy combatant" in Iraq, not in Afghanistan (as you misread my remark), because I believe that the U.S. invasion of Iraq violated international law. Again, I take "illegal" to mean "in violation of law."

Illegal enemy combatant does not refer to a war crime being committed necessarily. It can just refer to their status as non-uniformed, non-state affiliated combatants and it is this status that makes their war operations illegal as in not sponsored by an actual government.

Guess the Revolutionary War was not a war; just a bunch of criminals and brigands out for a little looting then, eh? The revolutionaries weren't "sponsored by an actual government". I'd note that this type of 'difficulty' and fuzziness in defining "wars" and "combatants" was in part the reason for the insertion of Common Article 3 into the Geneva Conventions (as detailed in the link I provided above on this).

... It distinguishes them from legal enemy combatants better known as prisoners of war or the enemy.

And places them in the "civilian" category. There is no third category, no "black hole" to disapear people into not subject to the Geneva Conventions.

Preemptive self-defense is still self defense and no law or treaty can excise this right.

Assuming arguendo that there is a right to self-defence, it's not at all clear that such would be inalienable through law or treaty. Furthermore, it's not clear that "preemptive self-defence" is in fact permissible self-defence, or if such were the case, that what the U.S. did in the situation with Iraq constituted a proper instance of permissible "preemptive self-defence", even if everything the U.S. claimed prior to waging the war was true.

The above are ripe issues for lawyerly discussions and disagreement, although I suspect that "The Dog" and his ilk will have far the worst of it. What is clear beyond a doubt is that what the U.S. did was not preemptive self-defence, and that the U.S. did or should have known that Iraq posed no danger to the U.S.

I see Robert Link makes the plea for censorship through non-engagement of thoughts not officially approved by the lefties ...

Wow. "Censorship" by remaining silent oneself! How nefarious! A tactic which leaves "The Dog" with no counter he can think of. What to do, what to do?....

... and then concludes with this little tale tale statement to Bart:

[Robert Link]: Some of us, my friend, have our sights set a little higher.

Higher? Self serving calls for censorship of dissenting views by a smug self-important elitist convinced of his all knowing all goodness and light open liberal mind is exactly my idea of setting one's sights a little higher.

Good thing for "The Dog" I'm willing to get down in the mud, and I'm not going to adopt Robert's "censorious" tactics of not trashing "The Dog"'s inanities, eh? That'll teach Robert. But how will I live with myself?

Respectfully, I would offer that even before the issues you present, there is the issue of *why* your "debate partner" would use such a hypothetical. And the term I've put in quotes is the key. I might be your debate "partner," but in the eyes of someone like Bart or others howling the Rove/Gingrich mantras you are not a "partner" in a joint enterprise to find truth and wisdom; in those eyes you are an enemy to be quashed by any expedient means. Bart has clearly validated this meta-frame that we are not partners with him in a joint pursuit for the right answers but that he is our debate *opponent*, against whom he is willing to wield all manner of sophistry in hopes of persuading, not you, but some unseen audience.

The TTB hypothetical is exactly such a sophistry. It should be roundly laughed out of the conversation; there's not a shred of legitimacy to it...as you point out. The TTB hypo is so riddled with false premises as to simply be worthless for making any wise decisions.

But, damn! how it sells, not entirely unlike the gross sentimentalisms in the writings of Justice Scalia. Anyone who passed intro Logic or intro Critical Thinking will tell you this kind of thing is laughable, at best; sadly the relationship between Logic or Critical thinking and persuasive rhetoric of sophists like Scalia and Gingrich cannot even be described as tenuous; imaginary is the only adjective that comes to mind.

Anne says: There has been legal discussions about one case of a preemtive strike, but never has anyone come up with a source to say that preemtive self defense is a alienable right.

Not trying to be grammar/spelling police, but for clarification, I am assuming you meant "inalienable" in the above.

The inalienable and inviolable and trumps all other laws and constitutional provisions and treaties nature of the right to self-defense including pre-emptive self-defense is found in the penumbra's of the bill of rights and the entire constitution itself. Its right there next to the word abortion, and like abortion trumps the constitutional right of free speech of an individual to hand out hand bills containing political speech, this constitutional right to self-defense/pre-emptive self defense trumps all other laws, rights, and treaties.

If liberal activist judges can find the words abortion there and the right to gay marriage there in these penumbra's, et al, then other judges could find, with equal authority and validity, the inalienable unmodifiable, and immutable constitutional right to self-defense/pre-emptive self defense.

Regarding pre-emptive self-defense I'm speaking of the collective right of the people through their government institutions to act pre-emptively to defend the country from attacks that are either imminent or appear to be probable, with the attack expected to occur fairly soon, and the possibility of use of weapons of mass destruction are high enough that it is not reasonable to wait until the threat materialzes or becomes imminent.

Off the top of my head, I think that covers the idea pretty well about what I mean by pre-emptive self-defense.

One additional point on pre-emptive self-defense. I would say it would also include the right to take out another countries WMD production facilities if the country in question were perceived to be an enemy of the USA or were perceived to be likely to provide WMD technology to the enemies of the USA.

The Dog writes: to act pre-emptively to defend the country from attacks that are either imminent or appear to be probable, with the attack expected to occur fairly soon

He posts. Then he realizes that, hey, that doesn't actually cover the Iraq war; another comment is needed:

it would also include the right to take out another countries WMD production facilities if the country in question were perceived to be an enemy of the USA or were perceived to be likely to provide WMD technology to the enemies of the USA

Thank you for the clarification Dog. You are totally right. My first language isn't English so feel free to correct me.

That is immediately my point: I'm so glad I don't have to consider your constitution as the highest authority in the world. For us non US-citizens it's so much easier: there is a treaty that gives women control on their reproductive rights. I never bother to check my constitution to find it. And we have this appalling liberal statutes that say that a government should mind its own business and let a woman herself choose wether or not to have an abortion.

But we might fairly conclude that you couldn't come up with a source that says that pre-emptive war is allowed, no? Don't bother complaining about liberal judges to me, because though I am bound my international law, I'm not by american law.

@arne: of course you are right to ridicule the ttb scenario when fighting against trolls. But as you mentioned the scenario is rather attractive for it's simplicity. Therefore is good to try and find a zinger response that is as simple but still convinces that the scenario is flawed.

The Soviet Union knew we wouldn't stike them first and they also knew we weren't giving WMD technology to country's who were going to strike them first. Therefore, your example fails.

I know liberals and their non-judgmental moral relevance glasses keep them from telling the difference between the USA and the Soviets or between Bush and Hitler, but thankfully the majority in this country don't suffer from this malady.

BTW, you are wrong in that my first post absolutely covers Iraq. We and the rest of the world reasonably believed Iraq had WMD, would use them, and would share them with people to use against us. My after-thought was to provide that pre-emptive self-defense should be applicable to Iran and North Korea. Iraq was covered by the first post.

Have you forgotten that our strategy for addressing a conventional war in Europe launched by Russia was a first strike? It's a matter of record.

Your silly slurs aside, it doesn't matter whether the U.S. *would* attack Russia out of the blue (ha); you said "perceived to be likely." Those are two big holes through which the Soviets could've launched a great many missiles.

We and the rest of the world reasonably believed Iraq had WMD, would use them, and would share them with people to use against us.

But that fits your 2d comment, not your 1st one. Besides which, no one outside the White House & Feith's office actually believed that Iraq would *initiate* conflict with its WMD's, or supply them to terrorists. The consensus was that Iraq would *defend* itself against a U.S. attack.

So we will indeed have to agree to disagree, though perhaps not for the reason you had in mind.

Pusillanimity. Not even the courage to use your normal brash "yaps the Chihuahua" sig line. Couldn't have anything to do with wanting to quietly drop off the radar when you know you've made an utter fool of yourself.

Now, in a *legitimate* debate you would be able to say, "Damn, ya got me," and we could all pad on down to the pub while you licked your wounds and considered what you've learned; we'd all be a little wiser, *and* we'd all be a little closer for the experience. Precious little of that vibe in the Rove/Cheney camps: It's called "honesty," and there's no room for it in the partisan posing of you and yours.

The odious Mr. DePalma says: He [KSM] disclosed a treasure trove of information identifying enemy cells and enemy plans to attack the United States.

(1) What is DePalma's source for this information, exactly?

Just google "khalid sheikh mohammed waterboarding." You will get dozens of hits. Here are a few. You asked for them. Read them all.

Moral and legal aspects aside, conventional wisdom is that torture simply isn’t practical: that someone who is being tortured will say anything to make the torture stop, and that information gleaned through torture is therefore not reliable. Some former military and intelligence officers say, however, that physically aggressive interrogation techniques that some human-rights groups consider torture can be effective in the short term. When asked for specifics, the technique they cite is “waterboarding,” in which water is poured over a subject’s face to create the sensation of drowning.

Consider Khalid Shaikh Mohammed, the 39-year-old former Al Qaeda operative who was the Sept. 11 mastermind and bearer of many Al Qaeda secrets. If anyone had a motive for remaining silent, it was the man known to terrorism investigators as “KSM.” But not long after his capture in Pakistan, in March 2003, KSM began to talk. He ultimately had so much to say that more than 100 footnoted references to the CIA’s interrogations of KSM are contained in the final report of the commission that investigated Sept. 11. Not that everything KSM said was believable. But much of his information checked out in separate questioning of other captured Al Qaeda figures.

What made KSM decide to talk? The answer may be waterboarding, to which KSM was subjected on at least one occasion, according to various accounts. Intelligence operatives say that while waterboarding can break through a suspect’s initial resistance, it isn’t effective for long-term interrogation. Once a suspect begins to communicate, however, an interrogation specialist can put into action a wide range of far more subtle techniques, which include playing to a subject’s ego or pretending to be his friend.

It could not be learned exactly when KSM was waterboarded or whether the technique was used more than once. But only 12 days after being captured in Pakistan, on March 1, 2003, KSM made his first reported major revelation.

In a radio interview on WDAY this week direct from Cheney's West Wing office, a very official setting, Vice President Dick Cheney, flat out endorsed the water torture technique bandied about on talk radio for years....

In the first part of the interview Cheney said in answer to a question from Scott Hennen:

Scott Hennen: And terrorist interrogations and that debate is another example. And I've had people call and say, please, let the Vice President know that if it takes dunking a terrorist in water, we're all for it, if it saves American lives. Again, this debate seems a little silly given the threat we face, would you agree?

The Vice President: I do agree. And I think the terrorist threat, for example, with respect to our ability to interrogate high value detainees like Khalid Sheikh Mohammed, that's been a very important tool that we've had to be able to secure the nation. Khalid Sheikh Mohammed provided us with enormously valuable information about how many there are, about how they plan, what their training processes are and so forth, we've learned a lot. We need to be able to continue that.

http://bbsnews.net/article.php/20061028011822504

The CIA sources say the sixth, and harshest, technique was called "water boarding," in which a prisoner's face was covered with cellophane, and water is poured over it (pictured above) -- meant to trigger an unbearable gag reflex.

New rules issued by the Pentagon today prohibit water boarding, though there was no clear acknowledgement that it was permitted previously.

CIA officers told ABC News that 9/11 mastermind Khalid Sheikh Mohammed lasted the longest under water boarding, two and a half minutes, before beginning to talk.

http://blogs.abcnews.com/theblotter/2006/09/variety_of_inte.html

(2) Conceding (1) for the sake of discussion, what is the evidence that standard interrogation techniques would *not* have elicited the same information, and then some?

Here you go...

Waterboarding Saved American Lives... [Rich Lowry]

...at least according to ABC News reporter Brian Ross in a very instructive interview with Bill O'Reilly the other night. It should put to rest the argument that coercive interrogation "never works," because all it produces is falsehoods. (Excuse the long post.) On the interrogations of the 14:

O'REILLY: OK, this is Khalid Sheikh Mohammed, Ramzi bin al Shibh, Zubata, all of these guys? All 14 were coerced. And the worst thing that they did to them, according to your report, was water boarding.

ROSS: Right, that is the most harshest of the treatments. And that's where a man is put upside-down. They put a cellophane or a cloth over his mouth. They pour water. It gives the impression that the person is drowning.

Now some people liken it to a mock execution. It is very tough to withstand. When the CIA officers who are trained in these interrogations go through it themselves, some of them couldn't last more than 35 to 40 seconds.

O'REILLY: Now the water boarding broke all of these guys?

ROSS: Not in every case. Some before even got to that point.

O'REILLY: OK, some when they kept them up, or they played live music, or they kept them in a cold room.

ROSS: They start with a slap, then a slap on the chest, and then the cold room, sleep deprivation, which seems to be the most effective. But for some, the water boarding is what it took.

O'REILLY: OK. Now you say the guy who held out the longest was Khalid Sheikh Mohammed, who is the alleged mastermind behind 9/11.

ROSS: That's right.

O'REILLY: How long did he last?

ROSS: About two and a half minutes, according to our CIA sources.

On the harshness of waterboarding:

O'REILLY: OK. So he gave it up. And most of them gave it up within seconds of being waterboarded, correct?

ROSS: 20, 30 seconds is the most people can take of this technique. It's that harsh.

O'REILLY: Can this hurt you if they continue to do it? Can it kill you, water boarding?

ROSS: If they continued, it could. But essentially, it creates a gag reflex, where you think you are about to die, you think you're drowning. You're not.

O'REILLY: OK. So nobody got permanently injured during this that you know of?

O'REILLY: So in all 14 cases, coerced interrogation methods, being debated in the Senate right now, were used. And in all 14 cases, according to your report, they gave it up.

Now the opposition, you just heard it. Human Rights Watch, ACLU, they say it's garbage. They told them what they want to hear. It wasn't truthful. Is that true?

ROSS: That has happened in some cases where the material that's been given has not been accurate, has been essentially to stop the torture.

In the case of Khalid Sheikh Mohammed, the information was very valuable, particularly names and addresses of people who were involved with al Qaeda in this country and in Europe.

And in one particular plot, which would involve an airline attack on the tallest building in Los Angeles, known as the Library Tower.

O'REILLY: Well, in fact, you say in your report that more than a dozen plots, a dozen al Qaeda plots to kill people were stopped because of the information they got from coerced interrogation?

ROSS: That's what we were told by sources.

O'REILLY: Do you believe that?

ROSS: I do believe that.

And again on the information that's produced:

O'REILLY: All right, but you're up there. When you hear human rights people come on this program and say it doesn't work, it never works, this is — what do you say?

ROSS: I think it's open debate, because sometimes there is information that doesn't hold up. But it's clear in several cases, with Khalid Sheikh Mohammed, with people that absolutely beyond a doubt are terrorists, terrorist masterminds, it does seem to have an effect. And that's just the bottom line.

O'REILLY: Has it saved American lives?

ROSS: That's what the administration would say. Certainly if you interrupted a tower - a plot to bomb a tower in Los Angeles, you've saved lives.

Bart: "This is true. However, we are dealing with unlawful enemy combatants fighting as civilians, not civilians."

Wrong: you're dealing with civilians who have been accused of crimes.

My friend, the vast majority are not civilians nor are they accused of crimes. The are enemy combatants in a war.

Before the MCA there was no basis in law for calling anyone an "unlawful enemy combatant."

Sure there was. Enemy combatants who qualified for the benefits of POWs under the Geneva Conventions followed international law and were therefore lawful combatants. Those who declined to follow international law were therefore unlawful.

* Bart: "The fact that unlawful enemy combatants fight as civilians mean that civilians will inevitably be mistakenly detained. This is the fault of the enemy fighting as civilians making it more difficult to identify them.

Oh, you mean like the way the authorities sometimes arrest innocent people for crimes committed by criminals?

No. The Geneva Conventions intentionally limited the benefits of POWs to those who fought in uniform and considers fighting as civilians and behind civilians as a war crime because such actions subject civilians to mistaken military action.

BS. POW protection applies to anyone it does apply to regardless of any war crimes they may have committed -- and anyone who isn't a POW under Geneva III is protected as a civilian by Geneva IV.

I am getting tired of this nonsense. Read the Geneva Conventions before you make yourself look any more foolish than you already have.

["Bart"]: "The fact that unlawful enemy combatants fight as civilians mean that civilians will inevitably be mistakenly detained. This is the fault of the enemy fighting as civilians making it more difficult to identify them.

[Charles Gittings]: Oh, you mean like the way the authorities sometimes arrest innocent people for crimes committed by criminals?

It is true that, unfortunately, some people are accused, arrested, and detained for crimes of which they are innocent. One would hope that two conditions prevail: That they are afforded a fair trial to assess that truth of the accusations, and that this trial be, if the accused so desired, "speedy" so that they are detained no longer than necessary.

Both of which the Dubya maladministration has fought tooth and nail (as Charles pointed out, and "Bart" ignored"). It took the U.S. Supreme Court to step in and "remind" the Dubya maladministration of both, but it took years with the Dubya maladministration dragging their feet the whole way. This is fact. And "Bart" can't deny it. So he'll ignore it.

The Soviet Union knew we wouldn't stike them first and they also knew we weren't giving WMD technology to country's who were going to strike them first. Therefore, your example fails.

Irrelevant to the claim (but perhaps false; there were RW Republicans at the tme more than happy with a "first strike"). And where do you think the Brits got their technology?

"The Dog" claimed that it was sufficient to have WoMD and be an enemy. Here it is, in black and white:

One additional point on pre-emptive self-defense. I would say it would also include the right to take out another countries WMD production facilities if the country in question were perceived to be an enemy of the USA or were perceived to be likely to provide WMD technology to the enemies of the USA.

Says the "Dog"

IOW, "The Dog" is either an eedjit who doesn't know what he says from time to time, or he's just a dishonest sack'o'....

[ahem] Rest assured Bart, I've read the Geneva (and Hague) Conventions a LOT more than you have, and I do mean ALL of them going back to 1863.

You're just flat WRONG -- read Geneva IV art. 4 -- a civilian is defined as anyone who is NOT protected by Geneva I, II, or III. Whether you've committed a war crime has nothing to do with your status, and you're protected from abuse either way. The penalty for "unprivileged belligerency" is simply to be subject to criminal charges, whereas a privileged belligerent cannot be punished for lawful military operations.

(Note: lawful military operations -- torturing prisoners is always a war crime, regardless of status.)

Claiming that someone is "an enemy combatant" or a "little green man from mars" simply does not amount to a conclusive finding of guilt.

You called the hypothetical situation of the President designating a two-year old girl in Chicago an enemy combatant "ridiculous" in order to dodge owning up to the FACT that you claim the Presidnet has the unreviewable authority to do just exactly that.

Well I have news for you Bart: it's just as ridiculous to suppose you can just point your finger at anyone you please and make them an "enemy combatant" who can be "legitimately" tortured or lynched by a kangaroo court -- and forget Geneva, try reading the US Constitution where it talks about indictments, juries, and ex post facto laws, etc.

What's the difference? That two-year old girl isn't capable of being a "terrorist," but her father is?

Well OK, but somewhere along the line... age 5, 10, 15 ...that little girl will become theoretically capable of being a terrorist, just like YOU are theorectically capable of being "terrorist". Out of all the people who are theortically capable of being terrorists, who's to say who is and who isn't?

So, getting back to the two-year old in Chicago, let's just suppose her father happens to be somebody you suspect is an "enemy combatant" for some reason. Let's further suppose that you suspect there's a ticking time bomb about to go off, as there always is in these paranoid little fantasies you folks spin to justify your crimes.

So you torture the father the very best you know how to torture someone and he *still* won't tell where the bomb is. Would you torture the little girl now?

And if not, why not?

Let's note that the father himself has NOT been convicted of anything -- the only excuse you have for torturing him is that you think the ticking time bomb is more important than due process of law.

Given that fact, and given that torturing the little girl in front of her father could easily be more effective than torturing him, what's your excuse for NOT torturing her?

It's time for you to quit dodging honest questions and get real Bart -- you may be fooling yourself, but you're not fooling me in the least, FRIEND.

We and the rest of the world reasonably believed Iraq had WMD, would use them,...

He misspells "the mouse in my pocket".

As for "reasonably", that's been shown to be a crock, as evidenced by the many that said so at the time, as well as what has been proven beyond a doubt since.

What we know is that eedjits like "The Dog" were wrong ... dead wrong ... horribly wrong. Yet the very same eedjits think it's a defence to their original sin to say, "well, do you have a better plan to fix it?" The answer is "yes, pretty much anything other than staying the disastrous course we're on is better, but 'It's nae me problem, Jimmie....'"

"Bart" DePalma's "authorities" on the efectiveness of waterboarding? Cheney and some O'Reilly guest. Quoting Monty Python, "Say no more, say no more..."

As to the claim that it worked in 2-3 minutes: So waterboarding is so "effective" that the person who held out longest (KSM) lasted less than three minutes? And this isn't torture?!?!?

As for "effectiveness": Here's "Bart"'s source:

"Not that everything KSM said was believable."

And:

"Khalid Sheikh Mohammed provided us with enormously valuable information about how many there are, about how they plan, what their training processes are and so forth, we've learned a lot. We need to be able to continue that."

So where's bin Laden?

"Bart"'s fondness for torture (and his obseqiousness to authority) certainly mark him as a fine and upstanding ... well, candidate for the SS.

Is this really the best you have to offer? Maybe you need to read a little more Gingrich to see how professonal apologists handle themselves when outclassed. Hmm, no, on second thought, I'm not sure you could handle so many big words. Best stick to Rush and Prager. Being on radio they won't task your literacy. My thanks for continually supporting my points about the failings of your partisans.

And, uh, Bart, just because the bottle of poison says, "Safe and pure," doesn't mean it's not poison; likewise for disengenuous hacks who claim they have a "no spin zone." :::sigh::: Don't worry, folks like us are looking out for you, even if you and your heroes aren't up to the job.

At the risk of just adding more to bandwidth with no particularly useful legal information content, I note that "The Dog" is getting somewhat prickly. Perhaps the impending holiday? Lycanthropy in action, I guess. Or perhaps "The Dog" is just letting his true character show through....

Congratulations, Robert, you have demonstrated through kindness and civility what I couldn't elicit with barbs and a thousand cuts. Perhaps you're right; I bow to you.

I don't doubt that KSM gave up *some* useful/true info under torture. That's never been in dispute. The point is that torture is not any more effective than standard interrogation techniques; indeed, it's *less* effective.

Torture ends up being used to confirm the fears/hopes of the torturer. That's what happened with al-Libi -- he wasn't saying that there was an Iraq-Qaeda connection, the CIA "just *knew*" that there was, so they rendered him to Egypt, where lo! he talked all about said connection. But it was all lies.

From the arguments on these pages and elsewhere, it is important to distinguish the TTB offered as a reason for a profound change in legality of torture, from the TTB which is merely a thought-experiment to question the ethical basis for torture's prohibition.

Legalising torture must surely require something more substantial than this far-fetched scenario, which as pointed out is so certain in its details (intelligence, accountability, guilt,etc) that it begs the question, why not go and deal with the bomb and not waste time on the torture bit. Add to this the proven and accepted inefficacy of torture, the likely repercussions on our boys in the field and the pragmatic case for its legalisation falls apart.

The case for torture in extremis has been put not as legally sanctioned practice but as something (as self-defence is to murder) which after due process might be treated with lenience, but to draw a general conclusion as to torture's legality or morality is surely to miss the point.

As a thought-experiment, its consequentialist and utilitarian calculus openly challenges the norm of human rights values (hence Ariel Dorfman's disdain from honouring the debate). It tempts with the adoption of the ultimate 'gloves off' stance where when pushed, in extremis, there are no moral scruples that can't be waived - a relativist's charter. Curious when spouted by those claiming to shun such moral relativism?

What perhaps underlies the TTB's advocates is the cynical exploitation of the fear that torture's equivocation seeds and the climate created is surely as corrupt as that in which torture is openely practiced, for as Dorfmann has said "It presupposes, it requires, it craves the abrogation of our capacity to imagine someone else's suffering, to dehumanise him or her so much that their pain is not our pain. It demands this of the torturer, placing the victim outside and beyond any form of compassion or empathy, but also demands of everyone else the same distancing.."

The thought-experiment neatly separates those who would hold an ethical position from those for whom such inconveniences are best sidestepped. Hardly the basis for our trust.

Apparently, in his new book, John Yoo clarifies what the footnote was meant to do. "Concerning a 2004 decision by the Justice Department to revise an earlier opinion (which had been widely condemned in Congress and by human rights groups as laying the groundwork for the abuses at Abu Ghraib), Mr. Yoo, intentionally or not, seems to buttress arguments made by critics of the administration, writing that it was an “exercise in political image-making” designed to help ease the confirmation of Alberto Gonzales as attorney general.

He adds that this 2004 opinion “included a footnote to say that all interrogation methods that earlier opinions had said were legal were still legal. In other words, the differences in the opinions were for appearances’ sake. In the real world of interrogation policy nothing had changed. The new opinion just reread the statute to deliberately blur the interpretation of torture as a short-term political maneuver in response to public criticism.”"Michiko Kakutani, What Torture Is and Isn't: A Hard-Liner's Argument, NY Times, Oct. 31, 2006. http://www.nytimes.com/2006/10/31/books/31kaku.html.

Arne: At the risk of just adding more to bandwidth with no particularly useful legal information content...

I doubt our hosts would find the meta-issues we're tackling to be entirely without merit. There's more content out there than any one person can cope with, but the matters of assessing the legitimacy of engagement is, to my eye, a terribly neglected topic. The biggest weakness of the liberal comes from the libros part of our psyche, the book-learned, academic part of our psyche. Conservatives view words and politics as extensions of guns and money. We tend to view words and politics as extensions of civilization and truth. If we are to hold our own, much less prevail, against the guns-and-money mentality of the so-called "right" we need to know that they are *not* legitimately engaged in a process of seeking truth, liberty, justice, equality. They are engaged in a process of securing and maintaining power. We must plan our strategies and tactics accordingly.

As for exchanges which have served to exemplify my point, well, seems to me it was a joint effort. ;)